Johnson v. State

583 S.W.3d 300

Lonnie Lynberg JOHNSON Jr., Appellant

v.The STATE of Texas

No. 02-18-00443-CR

Court of Appeals of Texas, Fort Worth.

Delivered: August 1, 2019

Discretionary Review Refused September 25, 2018

ATTORNEY FOR APPELLANT: ELIZABETH CORTRIGHT, FORT WORTH, TEXAS.

ATTORNEYS FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; JOSEPH W. SPENCE, ASSISTANT CRIMINAL DISTRICT ATTORNEY, CHIEF OF POST-CONVICTION; VICTORIA A. FORD, LEE SORRELLS, ASSISTANT CRIMINAL DISTRICT, ATTORNEYS TARRANT COUNTY DISTRICT ATTORNEYS OFFICE, FORT WORTH, TEXAS.

Per Curiam Memorandum Opinion

MEMORANDUM OPINION

Per Curiam

I. Introduction

A jury convicted Appellant Lonnie Lynberg Johnson Jr. of two counts of possession with intent to deliver a controlled substance that weighed four grams or more but less than two hundred grams. The jury did not find that Appellant had exhibited a deadly weapon during the commission of the offense. The trial court assessed punishment on each count at fifty-five years' incarceration in the Institutional Division of the Texas Department of Criminal Justice and ordered the sentences to run concurrently.

Appellant raises two points on appeal. First, he asserts that the evidence is insufficient to establish that he had possession of the controlled substances. We overrule this point because when viewed in the light most favorable to the convictions, the record contains evidence that supports a reasonable inference that Appellant was linked to the controlled substances and that supports a finding that he possessed them.

Second, Appellant contends that his trial counsel operated with a conflict of interest that caused him to render ineffective assistance of counsel. We overrule this point because Appellant's trial counsel had no actual conflict of interest, and even if he did, he did not advance another interest to the detriment of Appellant.

We affirm.

II. Appellant's argument—that there is insufficient evidence that he "possessed" controlled substances—fails.

In his first point, Appellant contends that the record does not establish enough links to place him in possession of the narcotics that were found inside bags in a vehicle in which he was riding. The court of criminal appeals lists numerous nonexclusive factors that guide the determination of whether there is sufficient evidence of possession. But this assortment of factors collapses into a single question: does the record contain evidence from which the jury could have drawn a reasonable inference that Appellant was in possession of the controlled substances that were found in the vehicle? Here, the jury watched the videos from the arresting officers' body cameras and saw Appellant use the presence of his children in the vehicle in an attempt to remove from the vehicle one of the bags containing the narcotics and then later deny that he had done so. Appellant also used the presence of other bags belonging to his children as an attempt to dissuade the officers from searching what turned out to be narcotics-containing bags located in the vehicle. Appellant's efforts to conceal the contents of the bags containing the narcotics and other evidence outlined below support the reasonable inference that Appellant indeed possessed the drugs concealed in those bags.

A. The factual background of the discovery of a cache of drugs following a traffic stop of a stolen vehicle without its headlights illuminated

After nine o'clock on a September night, a sport utility vehicle (SUV) without its headlights on passed a police officer. The officer stopped the vehicle. Appellant's wife was driving, Appellant was in the passenger seat, and his three children—ranging in age from four to nine—were in the backseat.

The vehicle had paper tags. As the investigating officer routinely did, he compared the Vehicle Identification Number (VIN) on the vehicle with that contained on the tag. The numbers did not match, which usually indicates that the paper tag is a fake. A computer check of the VIN that was listed on the vehicle confirmed that it was stolen.

At that point, the matter became a felony stop. Because of the presence of the children in the vehicle, neither the investigating officer nor a backup officer who had also arrived followed the standard procedure of removing all of the occupants from the vehicle at gunpoint. Instead, the investigating officer who originally stopped the vehicle asked the driver to step from the car, cuffed her out of the children's sight, and placed her in his patrol car.

But because all occupants must be removed from the vehicle during a felony stop, the officers asked Appellant to get out of the vehicle, which he did. Initially, Appellant was cooperative with officers, though he and his wife protested that they did not know that the vehicle was stolen.

On the video generated by the investigating officer's body camera, he told Appellant's wife that when he ran the VIN, the computer showed that the vehicle had been stolen out of Fort Worth. She responded, "Stolen?" In response to a question asking Appellant's wife from whom the vehicle was bought, she said that it was bought from a friend, that she had not had it long, and that she could let the officer talk to "them." Appellant said that this was his friend's car and that he did not know that it was stolen. The backup officer's body camera captured Appellant's statement when he was told that the vehicle was stolen: "That's ludicrous; I had no clue about nothing like that." The backup officer requested that Appellant provide the name of the friend who allegedly owned the SUV, and Appellant did so.

As the stop progressed, the backup officer's body camera showed that the officer approached Appellant while he appeared to be removing items from the vehicle and told him that before he started "gathering stuff up," the vehicle must be searched. Appellant responded, "We ain't got nothing illegal.... What would you think that we have illegal?" Appellant then relented in his efforts to remove items from the vehicle.

The older children also got out of the vehicle. The youngest child, who was in the middle of the backseat, was asleep. Though it was another failure to follow the procedures required for a felony stop, the officers asked Appellant to unbuckle the child's seatbelt and to remove him from the vehicle so that they would not traumatize the child.

While in the process of removing the youngest child from the car, Appellant reached for a camouflage backpack that was sitting immediately next to the child. That backpack became the central player in the underlying case. The investigating officer who made the stop told Appellant to leave the backpack alone and said that no items were to be removed from the vehicle until police had searched them.¹

The officers' refusal to let Appellant have access to the camouflage backpack caused a change in Appellant's attitude, and in the investigating officer's words, Appellant became upset and argumentative. According to the officers, Appellant indicated that the backpack belonged to his children and that he did not give his permission to look in it. The officers assured Appellant that after police had searched the backpack and the other bags in the vehicle, the officers would give the bags to Appellant if there was nothing illegal in them.

The backup officer also described how Appellant's attitude changed when he learned that the vehicle's contents would be searched. This officer reiterated Appellant's statement that he did not want the children's bags searched.

A search of the camouflage backpack revealed that it contained a green leafy substance that appeared to be marijuana; a substance that appeared to be cocaine; and pill bottles, which contained pills but had no prescription labels. The backpack also contained a small scale, rubber gloves, and plastic baggies. One of the officers testified that these items indicate that the person possessing them is a drug dealer.

Other nondrug-related items were also found in the camouflage backpack. The backpack contained black beads that matched the type of beads that Appellant was wearing in his hair. The backpack also contained a bottle of clipper oil and a clipper attachment for a Wahl clipper, which the officer identified as being used by a barber or someone who cuts hair.

Items from a clipper set that matched what was found in the backpack were found in another bag that Appellant had in his seat. Appellant told the officer that he made his living as a barber.

After the search of the backpack revealed its illegal contents, the investigating officer asked Appellant to whom the backpack belonged, and he said that he did not know—though a few moments before he had indicated that it belonged to one of his kids. This officer also testified that this was the same bag that Appellant had tried to grab and had not let the officer look into. One of the body camera videos depicts this officer bringing the camouflage backpack out of the vehicle; showing it to Appellant; and stating, "You said that this was your kids' bag, man." Appellant responded, "No, I didn't say that was my kids' bag." Later, the video captured Appellant again saying that the officers should not search his kids' bags.

The backup officer also noted that before Appellant learned that the vehicle would be searched, Appellant did not say that the vehicle contained items that did not belong to him. In the officer's experience, the shift in attitude from cooperative to uncooperative signaled the possibility that there might be something in the vehicle that the defendant did not want the police to know about.

The officers did not immediately place Appellant under arrest when they discovered the drugs in the camouflage backpack because they did not want the children further traumatized. The officers continued the search of the vehicle by examining bags in the hatch area of the SUV. Appellant had stated that the hatch area contained his children's backpacks. After a search of bags in the hatch...